Time Frame: Year One
START Categories: Staff, Resources, Treatment of Inmates
My blog series # 5 was about Time Credits and HOW to maximize their use and benefit. Early on, this series #6 has highlighted some of the legal issues and resources being consumed by the administration of the three main credits Congress has approved over the years:
* Good Time Credits(GTC)- reduces a sentence by 15% on day 1 of detention by the BOP, subject to forfeiture of a portion for each disciplinary issue
* Second Chance Act(SCA)- allows the BOP to assign offender up to 12 additional months to a halfway house/home confinement to serve out a sentence-not mandatory by the BOP and very arbitrarily implemented
* First Step Act(FSA)- subject to eligible sentences and inmate participation in sanctioned educational programs/productive activities, inmate earns 10-15 days/month of federal time credits(during confinement AND halfway house/home confinement) toward reducing sentence for one year and also increasing amount of time in halfway house and home confinement
As you can see, in some way each reduces time served or increases portion of sentence served in a halfway house/home confinement.
For some reason, first time non violent offenders and fourth time as well are treated the same throughout all these programs, which makes no sense to me, as clearly all the “programming” being received isn’t working if you’re a repeat offender. I’ll address this issue with proposed changes below.
Historical Perspective
Initially in the 1980’s, the Congress launched GTC’s, it was earned “as you go” on a monthly basis. Eventually the complexity of administering the program became too burdensome and Congress modified it to be granted upfront, subject to forfeiture for disciplinary issues as they might occur. Then Congress focused on the high recidivism rates and felt the the BOP wasn’t preparing offenders for transition back into society and a successful release, so passed the SCA. Eleven years later, the next major legislation, FSA, passed in 2018, and renewed the SCA as well. The FSA reintroduced the concept of earning credits monthly, and naturally the same administrative nightmare the GTC’s had. In this case, there was programming/productive activities required to earn the credits and all types of BOP reporting required to measure success of the program.
The net result of this evolution of programs is that now the BOP has to train its staff on and administer three programs. With the BOP’s culture toward holding onto inmates( another blog some day), three programs is a recipe for disaster. Both internally with their Administrative Remedy Process as well as through the courts with all the actions inmates file to receive what they are entitled to. Not to mention inmates still don’t receive their transfer to halfway house/home confinement timely.
With the launch of the FSA, the philosophical intent by Congress was to shorten sentences and increase time served in either halfway houses or home confinement, and provide programs to educate and thus lower recidivism rates. Six years later its clear the education component is weak, there continues to be a huge shortage of halfway houses and the BOP hides behind this shortage to delay transfer dates and won’t generally substitute home confinement instead.There are also ongoing disputes related to inmates having one sentence eligible for FSA and one sentence not. As well as when in the trial/sentencing/detainment process do FSA eligibility/credits begin?
The biggest issue in my mind is the contradiction in the FSA statute between maximizing time for halfway house/home confinement, and earning credits during time in halfway house/home confinement, but requiring ALL the credits to be earned before the transfer date. This contradicts the “maximize” concept as inmates earn credits during halfway/home confinement, but if they must be earned before transfer, they are effectively wasted and never used, thus delaying the transfer date. The answer,under current FSA law is to be able to use projected credits, subject to loss, just as earned credits are subject to loss. But this requires a court to interpret the ststute accordingly and they haven’t so far. As you will see below, I have a better suggestion!
Finally after 6 years, the BOP just recently started providing inmates a projected transfer date to halfway houses due to FSA and SCA. Its a nice step forward, but the BOP won’t commit to these dates, especially the SCA time until months closer to transfer date. Its well known by advocates and observers that for some reason the BOP minimizes SCA home confinement now that FSA exists. Again not clear why but seems to be true.
Simple Solution
Consistent with my differentiation of first and second time non violent offenders, I propose the following changes to the 3 Acts be done by Congres with a simple modification to the FSA:
* Eliminate GTC and SCA and combine their benefits of their credits into FSA for ALL inmates
* Roll the ” GTC concept of credits upfront” into FSA and provide ALL FSA credits upfront, subject to normal disciplinary or lack of programming reduction. Also eliminates the need to manage projected credits and the contradiction of not being able to use credits earned during halfway house/home confinement due to the “must be erned before transfer issue”.
* To simplify for the BOP, recalculate for ALL inmates as of this new law’s effective date rather than have “before/after” calculations for various inmates and litigation like FSA caused for courts to determine various inmates issues
* Clarify FSA
– start date is first day detained after sentencing , whether immediately or self surrender, regardless where detained or if a BOP location.
– For first time offenders, if one sentence is eligible that’s all that’s required for eligibility, regardless if second isn’t(would tighten prosecutorial over reach on charges). For repeat offenders, make clear it is NOT available. This primarily impacts repeat drug offenders.
– clarify no excuses for BOP to delay transfer date to halfway house/home confinement, like bed availability. If no beds available, immediately to home confinement.
* FSA credits granted UPFRONT
– First time non violent offenders-grant credits of 120% of # of months of sentence, 100% for second time non violent offenders, and 80% thereafter if even eligible given recidivism score
– apply credits % below to sentence reduction and eliminate FSA credits applied to accelerating supervised release
i) first time offender- 30% of credits
ii) second time offender-15% of credits
iii) third time and after-none-credits can only be used toward Halfway House/home confinement
– remainder of credits applied to accelerate transfer date to halfway house or home confinement for ALL inmates
These handful of changes will significantly reduce BOP staff time dealing with BP-8 thru 11’s, as well as District Court time dealing with all the 2241’s. Will also bring implementation of Congress’s intent into reality as to maximizing home confinement. Lastly will lower inmate headcount further reducing pressure on BOP staffing levels and their budget.
